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Muslim Women: Status and Divorce Rights Under Islamic Law

By Shabdita Gupta

Muslim Law could be seen as an admirable system of jurisprudence providing, as it did, many rational and
revolutionary concepts that could not be conceived by the other systems of law then in force at that distant
date. It provided, for example, for the right of inheritance to the females even when there were male heirs and
also the modern concept of divorce by mutual consent, while the other systems of law took so many centuries
to do so. But as a result of deplorable distortions made by, and unfortunate metamorphosis undergone at the
hands of Anglo-Indian courts, substantial portions of the Muslim law as administered by these courts have
quite obviously failed to earn the appreciation which the Muslim law in its modified frame rightly deserved
because of its rational, realistic and pragmatic approach in many respects. In very old times, amongst a
plethora of existent religions , Islam emerged, consisting of a radically new concept of a religion, to fulfill the
needs and aspirations of the tribes and communities of the Arabian states.

However, Islam claimed to be a universal religion, intended for all times. It emerged as a practical religion and
continued to aid each of its followers, irrespective of race, nationality, language and gender, the last
contention however being debatable.

However, to understand the nature and scope of the rules and procedures envisaged by Islam, it is imperative
to understand the position of law prevailing in the pre-Islamic era. The position accorded to women was of
extreme inequality and devoid of any claim over any asset or any other rights. Polygamy was widely
practiced and divorce was almost given out of habit than necessity. Moreover, woman was never a free agent
in marriage, as she was largely given in marriage by her guardians, her consent being immaterial. The practice
of killing and burning alive of female infants was also not uncommon among Arabs.

In this context, the view expressed by an eminent authority on Islam law, Asghar Ali Engineer is worth
noting;
“Although Mecca was an important commercial center of international dimensions, the tribal social structure
had not been dissolved. It continued to be predominant although it was in the process of disintegration. Again
the tribal pattern was patriarchal since the known history of the area. As the legend has it Abraham, the chief
patriarch of the Jewish tribes had two sons Ishmael and Isaac. The Arabs are said to have descended from
Ishmael whereas the Jews from Isaac. All of them were patriarchal and their value system was accordingly
determined. ”

Thus, on the basic common platform for Judaism and Islam itself, one can see that there exists a patriarchal
value system and therefore, denigrates women and greatly, affects their status in a deplorable manner.

All family laws- Hindu, Muslim, Parsee, Sikh, Jain and Christian personal laws-have certain common features.
All of them recognize the man as the head of the household, they sanction patrilineage and patrilocality, they
treat women as men’s property and consider the father to be the natural guardian and they perpetuate double
standards in sexual morality and property rights.

It is common knowledge among those reasonably acquainted with law that women are greatly deprived of
their rights within the laws that govern crucial aspects of the man woman relationship: marriage and divorce,
custody of children and guardianship rights, alimony and maintenance for divorced women as well as
property rights.
The question of women has acquired great importance throughout the world today among all communities.
This is for obvious reasons. For centuries, women have been in total subjugation in male-dominated
patriarchal societies. It has been a “natural law” to regard women as the inferior sex and for them to submit to

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male authority for the smooth functioning of society in its day to day progress.
However the status of women and their responses to the codification of personal laws was the most important
feature that was not considered by the British, not by the legislators in the post independence era and even
today in the 21st century. Muslim women somehow continue to be unrepresented, unheard of and carry no
form of whatsoever in the formation of laws that have to be governing them. They are just represented by
various interest groups that have vested interest and political leaders who merely treat communities like
Muslims as their ‘vote banks’.
It is in the light of such an emerging context of Muslim women and their rights in today’s world, that the
researcher hopes to provide an insight to the law governing Muslim women and their predicament as far as
divorce is concerned which is by far one of the most important areas of personal laws.

EVOLUTION OF DIVORCE IN ISLAM

Pre- Islamic background

Among the pre Islamic Arabs, the power of divorce possessed by the husband was unlimited. They could
divorce their wives at any time, for any reason or without any reason. They could also revoke their divorce
and divorce again as many times as they preferred. They could, moreover if they were so inclined, swear that
they would have no intercourse with their wives, though still living with them. They could arbitrarily accuse
their wives of adultery, dismiss them, and leave them with such notoriety as would deter other suitors; while
they themselves would go exempt from any formal responsibility of maintenance of legal punishment.
According to Abdur Rahim there were four kinds of dissolution of marriage were known in pre- Islamic
Arabia. These were Talaq, Ila, Zihar and Khula. A woman if absolutely separated through any of these four
modes was probably free to remarry, but he could not do so until some time, called the period of iddat, had
passed. It was to ascertain the legitimacy of the child. But it was not a strict rule. Sometimes, pregnant wife
was divorced and was married to other person under an agreement. It is interesting too note that the period of
iddat in case of death of husband then was a year.

After the advent of Islam.

The prophet of Islam looked upon these customs of divorce with extreme disapproval and regarded their
practice as calculated to undermine the foundation of society. It was impossible however, under the existing
conditions of the society to abolish the custom entirely. The prophet had to mould the mind of an uncultured
and semi- barbarous community to a higher development. Accordingly, he allowed the exercise of the power
of divorce to husbands under certain conditions. He permitted to divorce parties three distinct and separate
periods within which they might endeavor to become reconciled; when all attempts at reconciliation prove
unsuccessful, then in the third period the final separation became effective.
The reforms of Prophet Mohammad marked a new departure in the history of Eastern legislation. He
restrained the unlimited power of divorce by the husband and gave to the woman the right of obtaining the
separation on reasonable grounds. He pronounced; talak; to be the most detestable before God of all
permitted things for it prevented conjugal happiness and interfered with proper bringing up of children.
Fyzee says that it sometimes is suggested that the greatest defect of the Islamic system is the absolute power
given to the husband to divorce his wife without cause. Dower to some extent restricts the use of this power.
But experience shows the greatest suffering is endangered by the husband’s withholding divorce than by his
irresponsible exercise of the right.

METHODS OF DIVORCE :

Divorce is a vexed question in Islamic law as administered in India. The recognized forms of divorce being
Talaq, Talaq by Tafweez; Kula and Mubaraat; Ilah, Zihar and Lian.
The word talaq which we hear everyday in so many different Hindi movies and propagated by the mass
media, in technical terms amounts to repudiation. The very concept of divorce in Muslim law is grossly
violative of the freedom of the woman as; the husband may pronounce divorce to the wife when he is of

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sound mind and moreover, the presence of the wife is not even necessary. This implies the clear simplicity of
divorce for a husband even in the absence of the wife. Moreover, the reasons for divorce are unnecessary as
also the intention as long as the statement in which the divorce is pronounced with or without the presence of
the wife is unambiguous. This accounts for the hassle free attitude of Muslim men with regards to divorce as
they are clearly accorded a dominant status.

The Holy Quran mentions divorce in the following manner:

‘If ye fear a breach between them twain, appoint two arbiters, one from his family and the other from hers. If
they seek to set things aright, Allah will cause their reconciliation.”

Since marriage in Islam is a contract, it may be dissolved at any time. A Muslim husband of sound mind may
divorce his wife whenever her so desires without assigning any reason. The presence of the wife is not even
necessary for pronouncing a divorce or any notice need to be given for that purpose. The most popular form
of Talaq is Talaq-al-Bid’ at which means ‘the divorce of wrong innovation’. It allows instantaneous Talaq,
three pronouncements in a single sitting. This form of divorce is highly criticized as supposedly is opposed to
the principles of the Qur’an.
It was always advocated by the Muslim Holy Texts and the preaching of the Prophet that a man must seek for
marriage, a woman of equal social status. Though it can be said that Muslim law in all its egalitarian principles
confers upon women equal status is also interpreted in various other ways. Though it was always felt that the
man must marry himself to a woman of equal status, there was no such provision for the women that a woman
must marry herself to a man of equal status. Rather it was always considered that a man, on marriage with a
woman of lower status, would simply elevate her position to his own position. This concept of equality
between the two parties to a Muslim marriage was traditionally known as kafa’a. The idea of faskh
demonstrates the uncommon platform on which men and women stand in Muslim law. This concept was that
a woman who contracts herself to marriage with a man of unequal status without the consent of any of her
male relations would render such a marriage voidable and rescindable by the Court. There were divergent
views as to whether the woman could obtain dissolution of marriage with different schools of Muslim law
advocating different views. This system of divorce by judicial rescission now takes the form of the Dissolution
of Muslim Marriages Act, 1939 and now sponsors the same law for all the various schools of Muslim law. The
passing of this law benefited many women all over the country for it procured for women a right to divorce
under the different schools of law and made no discrimination against them. Sec.3 of the Dissolution of
Muslim Marriages Act speaks of the different grounds on which a woman may obtain a decree of divorce
from her husband, thus, entitling her to divorce in the first instance.
The husband may also delegate his right of divorce to his own wife an authorize her to pronounce talaq.
According to Fyzee, this form of delegated divorce is perhaps the most potent weapon in the hands of a
Muslim wife to obtain her freedom without the intervention of any court and is now beginning to be fairly
common in India. The authority is given to the wife under an agreement at the time of the marriage or at any
time after it. The general practice is to delegate the power of divorce to the wife upon the husband’s failure to
fulfill certain conditions or upon the happening of an event. But the conditions must be of reasonable nature
and must not be against the principles of Islam.
The delegation of the right to talaq incase the husband fails to pay her maintenance may be delegated. In
Hamidool v. Faizunnissa it was held that the power may be delegated at the time of nuptial agreement or
during the married life. The power so delegated cannot be revoked by the husband. Further in the case of
Saifuddin v. Latifunnissa, it said that the wife may exercise the power to counter a suit for restitution of
conjugal rights instituted by the husband and such exercise will result in talaq.
After having delegated this right to his wife, the husband cannot revoke it because after delegation it is the
wife who owns this right on his behalf. This right to delegate divorce can prove very useful to the wife if the
man takes another wife without her consent or if he neglects her or deserts her or violates any other marriage
condition or does anything which the wife disapproves. If it is, no doubt, a novel concept, which does not
exist in any other legal system and it undoubtedly provides extra security to a married woman. She can
stipulate it as one of the conditions of marriage. From this it can be seen that in addition to the holy Qur’an

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Muslim jurists have also taken care to protect women’s rights and interests.
Muslim women have the right to seek dissolution of marriage even under the system of Khula; under this form
of divorce a husband is given compensation to release the woman from her marriage tie, this right is rarely
invoked now though the Quran lays down this provision. This form of divorce by the initiation of the wife is
seen by many to be discriminatory as it releases the wife from the bondages of marriage with conditions
imposed by the husband generally regarding a certain sum of money/consideration which is usually a part or
the whole of the Mehr.

In the leading case Munshee Buzlul Raheem v. Luteefutoon Nissa, the Privy Council described Khula form of
divorce as under:

“A divorce by khula is a divorce with the consent and at the instance of the wife in which she gives or agrees
to give a consideration to the husband for her release from the arriage tie. In such a case the terms of the
bargain are matters of arrangement between the husband and wife and the wife may as the consideration
release her dynmahr and other rights or make any other agreement for the benefit of the husband.”

Another form of divorce is Mubara’at in which the proceedings might be initiated by either the husband or the
wife, but once it is accepted the dissolution is complete. This is a form of divorce by common mutual consent
wherein if the divorce is initiated by the husband, it is known as mubara’at.

Where the desire for separation is mutual, the law requires a woman to offer her husband compensation.
Muslim law has conferred upon the wife’s stipulated right to dissolve her marriage on her husband from
entering into a second marriage and taking a second wife, a force overriding the sanctity of the first marriage
itself. There is also a provision for divorce when a woman has a right to pronounce Talaq if her husband has
delegated that right to her in the Nikahnama where he has to state that if he commits polygamy or if his wife
cannot get along with him, she has the right to Khula. . It has been held in a recent Pakistani case that such
matters as “incompatibility of temperaments, aversion, or dislike cannot form a ground for wife to seek
dissolution of her marriage, at the hands of a Quazii or a court, but they fall to be dealt with under the powers
possessed by the husband as well as the wife under Muslim Law”, that is capacity of making a Khula or
Mubarat at divorce.

CONCLUDING NOTE:

The Special Marriage act 1954, which is a secular law of the land has curtailed the extra judicial and
unilateral right to divorce of the Muslim husband, who has married under this act, with a result that Muslim
women also get an equal right to divorce like her husband.
There is a widespread perception that Muslim women are among the most backward, illiterate and oppressed
in the world. They are also depicted as being confined to the four walls of their homes totally cut off from
outside world. The patriarchal Arab culture had its own set understanding of women’s position. Thus the
Koranic pronouncements of sexual equality was understood and implemented through mediation of Arab
culture. However, one strongly feels that this is not the position today. But what is still most upsetting is that
the Koranic verses and Prophet’s teachings are selectively quoted by those who commanding enough respect
to initiate any form of change thereby defeating any chances of that happening.
However, this doesn’t mean that efforts are not being made towards the emancipation of Muslim women.
There are Muslim theologians like Fatima Mirsani from Morocco and Amina Wadood and Riffat Hassan from
US and other women’s originations like ‘Sisters of Islam’ from Malaysia who are working towards the cause
for women’s rights in the Islamic world.
The many infirmities and misleading principles that are at total variance with the true spirit of Islamic law, as
contained in the Quran are mainly due to the lack of access by courts to the primary sources of Islamic law .
The fear in the minds of the legislators concerning agitations and reprisals by the conservative and orthodox

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Muslims has contributed in retarding the pace at which the legislators reacted to the explicitly faulty situation.
Equality has always been guaranteed to Muslims by their laws and the law of Islam, as rather contradictory
from general perception is very equitable and hardly provides any scope for discrimination against women
The equality in treatment of both the sexes, as envisaged by Islam, can be ascertained from the following
extract from Qur’an:
“For Muslim men and women, For believing men and women, For devout men and women, For true men and
women, For men and women who are patient and constant, For men and women who humble themselves, For
men and women who give in charity, For men and women who fast, guard their chastity, and For men and
women who engage much in Allah’s remembrance for them has Allah prepared forgiveness and great
reward.”

More troubling still is that though these conditions can increase a woman’s access to divorce, they do not
restrict in any way the husband’s right to repudiate her unilaterally at will.

Attempts to reform divorce laws in the contemporary Muslim world have been plentiful. Most of these have
attempted to either restrict men’s unfettered exercise of their rights to repudiation or to increase women’s
access to divorce. In the first case, some nations have accomplished this by requiring some type of
intervention or registration from a judge, or by declaring that three repudiations pronounced at once will
count as only one divorce. (This has always been the predominant Shia view, but only a few individual Sunni
jurists have held it.) Some nations have imposed financial penalties on a husband who divorces his wife
without cause. However, despite these attempts to curb men’s impulsive and extra-judicial use of talaq, the
courts still consider men’s unilateral repudiations legally effective since they are recognized by traditional
jurisprudence.

When it comes to increasing women’s access to divorce, the adoption by Hanafi jurisdictions of the relatively
more liberal Maliki grounds for divorce represents a significant improvement. However, the interpretation of
these provisions varies significantly, and judges wield quite a bit of discretion in their application. In Egypt
and elsewhere, for example, courts have ruled that while physical abuse may constitute “harm” for
upper-class women, women from lower social strata can expect some violence from their husbands, and thus
it does not meet the criteria for them to seek divorce. In these cases, though reforms have altered some of the
specifics of divorce laws, they have not challenged the basic idea that divorce is a man’s prerogative, while
women may only obtain divorce for cause.

SOURCES

1. These lines have been taken from the text of the Convention on the Elimination of all forms of
Discrimination Against Women (C.E.D.A.W) available online at http://www.un.org/womenwatch/daw/cedaw
/text/econvention.htm last visited on 11 Dec, 2006.
2. Mulla, Mulla on Mohammedan law, Dwivedi Agency, 2006, Delhi, p.17
3. Other religions and doctrines like Zoroastrianism, Buddhism, Taoism and Shintoism had emerged in
different parts of Asia, Polytheistic religions flourished in India, Indonesia, Sri Lanka and Egypt.
4. Malik Sherebanu, “Divorce in Indian Islam” in “ Problems of Muslim Women in India”(Asghar Ali
Engineer Ed.), 1995, Orient Longman Limited, Hyderabad, pp-30
5. Asaf A.A. Fayzee, Outlines of Mohammadan Law 6,Oxford University Press,4th Ed., 1999, p.9

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6. Engineer Asghar Ali (Ed.), 1987, Status of Women in Islam, Ajanta Publications, Delhi at pp-80
7. Chacchi, Amrita, The State, Religious Fundamentalism and Women - Trends in South Asia available online
at http://www.wluml.org/english/pubs/pdf/dossier4/D4-SouthAsia.pdf last visited on 11th Dec, 2006.
8. The status of a Muslim woman in today’s world is undeniably harsh and to a certain extent comparable
with that of animal treatment. Such a situation was last explicitly demonstrated in the Shah Bano case. The
Shah Bano case of 1986 poignantly portrays the plight of individual struggling women in the wake of the law
and further, emphasizes on the challenges faced by Muslim women in India.
9. Rashid Khalid Syed, Muslim Law, 3rd Ed., Eastern Book Company, New Delhi.
10. Rashid Khalid Syed, Muslim Law, 3rd Ed., Eastern Book Company, New Delhi.
11. Rashid Khalid Syed, Muslim Law, 3rd Ed., 1996, ISBN 81 7012 562 6, Eastern Book Company, New
Delhi.
12. Fayzee, Asaf A.A. ,Outlines of Mohammadan Law 6, Oxford University Press,4th Ed., 1999.
13. As illustrated by Encyclopaedia of Islam, III, p.636-640 by J.Schacht.
14. Supra note 5 at p.150. This was further emphasized upon in the case of Mohd. Shamsshuddin v. Noor
Jahan A.I.R. (1955) Hyd. 144.
15. As illustrated in Rashid Ahmed v. Anisa Khatun (1931) 59 I.A. 21,26. Supra note 5 at p.158.
16. The Quran, Surah 4:35
17. Extract from report on “Status of Muslim Women in India” by Dr. Syeda Hamid
18. Faskh literally means an annulment which implies the rescind or revocate a contract. In case of Faskh, a
Qazi can annul a marriage on the option of the wife.
19. This outlines the fact that an independent decision of the woman to marry is just left ajar and hardly
considered for such a marriage is always voidable and therefore, we can notice the unjust treatment meted out
to women in this context. Supra note 5 at p.110
20. Reddy, G.B; Women an The Law; 4th Ed. 2001, Gogia Law Agency, Hyderabad.
21. Hamidool v Faizunnissa, (1812)8 Cal 327
22. Saifuddin v Latifunnissa , (1919) 46 Cal 141.
23. Fatwa ‘Alamgiri, op cit., vol II. P 67
24. Engineer Asghar Ali (Ed.) ,Status of Women in Islam, Ajanta Publications, Delhi, 1987.
25. Supra note 5 at p.162
26. Moinuddin, S.A.H, Divorce and Muslim Women, Rawat Publications, 2000.
27. This was quite clear in the case of Ayatunneesa Beebee v. Karam Ali ILR 36 Cal 23 where it was held
that a Muslim wife, who has the power given to her by the marriage contract to divorce herself in the event of
the husband taking a second wife does not lose the option by failing to exercise it the very moment she knows
that he has done so for “ a second marriage is not a single but a continuing wrong to the first wife.”
28. Sayeeda Khanum v Muhammad Sami, PLD 1952 (WP) Lah 113(FB)
29. Ephroz, Khan Noor ;Women and law; Muslim Personal Law Perspective, Rawat Publications, 2003.
30. This lack of access to the origin and primary sources of Islamic law might have resulted in the
autonomous decisions and hazy understanding of the law by courts which might not be in agreement to the
Qur’an.
31. Chaturvedi, Archna, Muslim Women and Law, Commonwealth Publishers, 2004, p.5
32. Qur'an (33:35), Jamal Badawi,, Gender Equity in Islam, quoted on
http://www.islam101.com/women/equity.html last visited on 11th Dec, 2007.
33. Kecia Ali, “The Feminist Sexual Ethics Project”, available online at http://www.brandeis.edu/projects
/fse/Pages/divorce.html, visited on 2nd jan,2008.

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